Back
2001 MarsdenLR 1126
FEDERAL COURT KUALA LUMPUR
BATU KAWAN BHD – Appellant
Versus
PENTADBIR TANAH DAERAH SEBERANG PERAI SELATAN – Respondent
[Civil Appeal No: 02-19-2000(P)]
[1] At the outset of this appeal a preliminary point was raised by Dato' Alizatul Khair bt Osman Khairuddin, State Legal Adviser, for the respondent, that the consent order of this court dated 18 October 2000, granting leave to the appellant to file this appeal out of time, does not reflect the true status and nature of the proceedings as it failed to include some other pertinent order as well. To understand and appreciate that point it is necessary that we trace the steps how this appeal, a land acquisition matter, came to be before this court.
[2] The starting point is 11 October 1990, as on that date six pieces of agricultural land belonging to the appellant were gazetted for the purpose of compulsory acquisition under the Land Acquisition Act 1960, ("the Act").
[3] On 16 April 1992, the respondent held an inquiry under s 12 of the Act and on 7 September 1992, a sum of RM53,197,974 or RM8,167 per acre was awarded as compensation for the total area of 5260 acres acquired. The appellant objected to the award and the respondent referred the matter to the Penang High court as Land Reference No 15 January 1993.
[4] Abdul Hamid Mohamad, J (as he then was) heard the reference for two days on 13 June 1994, and 4 August 1995, and on 9 October 1995, he, inter alia, increased the award to RM5,000 per acre with interest at 8% per annum calculated from 28 November 1992, the date Borang K was issued until the date of settlement.
[5] The appellant's then solicitors, lodged an appeal to the court of Appeal on 6 November 1995, and on 22 September 1997, the court of Appeal dismissed the appeal with costs. Subsequently the appellant filed a motion in this court for leave to appeal and on 11 August 1998, the motion was also dismissed with costs.
[6] Two years later, the appellant's present solicitors realised that appeals in land reference matters lie directly from the decisions of the High court to the Federal court. This is so as the court of Appeal established on 23 June 1994, had no jurisdiction in land acquisition matters until 1 March 1998, when s 49(1) of the Act was amended to confer such powers and that too in respect of references made after that date. In this case since the reference was made on 15 September 1992, clearly the court of Appeal lacked jurisdiction when it determined the matter on 22 September 1997.
[7] It was based on that reasoning that the appellant's solicitors filed a notice of motion dated 7 September 2000, in this court for an extension of time to appeal against the High court decision dated 9 October 1995, and to proceed to rehear the matter on its merits. On 18 October 2000, this court allowed the application on the undisputed ground that all proceedings in the court of Appeal and subsequent proceedings relating thereto in this court were null and void. To that end the court of Appeal order dated 22 September 1997, dismissing the appellant's appeal with costs as well as the order of this court dated 11 August 1998, dismissing the appellant's application for leave to appeal should, for completeness, have been declared to be null and void and expressed to be so in the consent order dated 18 October 2000. However a perusal of that latter order shows no such declaration. It was to correct this omission that Dato' Alizatul Khair raised the preliminary point for it is her contention that if left uncorrected the court of Appeal order dated 22 September 1997, and the order of this court dated 11 August 1998, would appear to be valid and subsisting. For the reasons already stated, this could never be. We entirely agree with her.
[8] It was to correct that omission that Dato' RR Sethu, counsel for the appellant made an oral application to amend the consent order dated 18 October 2000, to include another order declaring the court of Appeal order dated 22 September 1997, and the order of this court dated 11 August 1998, null and void. Since the consent order dated 18 October 2000, was obtained on th
